Those Students Loans You and Your Spouse Took Out for Your Child…and Your Florida Divorce

A pair of errors by a trial court allowed a husband to win his appeal before the Second District Court of Appeal recently. The lower court’s failure to include in its equitable distribution a loan taken out for the purpose of funding the couple’s child’s education was erroneous, as was basing the husband’s obligation on his gross, rather than net, income.

In this case, a divorcing couple was litigating the issues of alimony and equitable distribution. The trial court’s ruling, which ordered the husband to pay the wife $4,750 per month in permanent periodic alimony, and which made no mention of the $12,900 Parents’ PLUS loan that was taken out for the couple’s daughter’s education (but that listed only the husband as a borrower), led the husband to pursue an appeal.

The lower court had concluded that the wife had a significant need for alimony, and the husband had a substantial ability to pay alimony. The husband, according to the trial court, made $150,000 per year. It arrived at this number based upon a financial affidavit showing the husband’s income as $124,620, plus $30,000 in annual incentive bonuses.

In alimony litigation, there are two required elements for an award: proof of the recipient’s need and proof of the payor’s ability to pay. In this appeal, the husband did not dispute that his ex-wife had a need for alimony. He centered his arguments on the second factor: his ability to pay. In determining his ability, the trial court made multiple errors, according to the husband, including calculating his ability on his gross income, rather than his net income.

That argument persuaded the appeals court. The evidence was clear that the $124,620 figure was the husband’s gross income, and the law in Florida is also clear that the computation of a payor spouse’s ability to pay alimony should be based upon net income, rather than gross.

The husband’s second argument also was persuasive. The loan in dispute in this case was a Parent’s PLUS loan taken out to fund the couple’s daughter’s college education. The loan documents listed the husband as the sole borrower. By making no mention of the PLUS loan in its equitable distribution order, the trial court functionally made the husband solely responsible for the entire remaining balance. The law requires trial courts, in any equitable distribution litigation, “to clearly identify and value all of the marital and nonmarital assets and liabilities and to determine entitlement to each marital asset and responsibility for each marital debt.” By failing to mention the PLUS loan at all, the equitable distribution in this case did not comply with the statute.

In your alimony or equitable distribution case, you need skilled counsel advocating for your side. The diligent South Florida equitable distribution attorneys at Sandy T. Fox, P.A. have handled a wide array of divorce and alimony cases and have the tools and the experience you need to help you pursue the outcome you desire. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.